Kassim v Quality Food World Pty Ltd
[2018] FCCA 747
•19 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KASSIM v QUALITY FOOD WORLD PTY LTD | [2018] FCCA 747 |
| Catchwords: INDUSTRIAL LAW – Application for summary judgment – applicant leaving work on parenting leave – whether respondent promised her that she could have employment upon her return – respondent asserting that the applicant abandoned her employment – respondent refusing to employ applicant upon her return – applicant commencing this proceeding – respondent bringing summary judgment application – application dismissed. |
| Legislation: Fair Work Act 2009, ss.44, 74, 76, 117 Federal Circuit Court of Australia Act 1999, s.17A(2) Federal Circuit Court Rules 2001, rr.13.10, 16.21 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 Aponso v Sea Corp Pty Ltd [2018] FCCA 339 BJN16 v Minister for Immigration and Border Protection (No 2) (2017) 321 FLR 469 Fencott & Ors v Muller & Anor (1983) 152 CLR 570 Metropolitan Health Service Board v Australian Nursing Federation (2000) 99 FCR 95 Spencer v Commonwealth of Australia (2010) 241 CLR 118 Stack v Coast Securities (No 9) Pty Ltd; Bargal Pty Ltd v Force (1983) 154 CLR 261 |
| Applicant: | BIFTU KASSIM |
| Respondent: | QUALITY FOOD WORLD PTY LTD (ACN 100 042 331) |
| File Number: | MLG 1731 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 19 March 2018 |
| Date of Last Submission: | 19 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 19 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Fetter |
| Solicitors for the Applicant: | Holding Redlich |
| Counsel for the Respondent: | Mr A Solomon-Bridge |
| Solicitors for the Respondent: | Madisons Lawyers |
ORDERS
The application in a case is dismissed.
Costs are reserved.
The further hearing of this proceeding is adjourned for mention at 10:15am on Tuesday 3 April 2018.
Prior to the hearing on 3 April 2018 the parties are to bring in consent minutes for the ongoing future conduct of this case.
Amended pursuant to r.16.05(2)(e) of the Federal Circuit Court Rules 2001 on 3 April 2018
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1731 of 2017
| BIFTU KASSIM |
Applicant
And
| QUALITY FOOD WORLD PTY LTD (ACN 100 042 331) |
Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
On 27 November 2017, I ordered the respondent’s application in a case filed 27 October 2017 to be heard and determined by me today. On 2 October 2017, I had ordered by consent that the applicant have leave to file and serve her amended statement of claim by 29 September 2017. Then, on 27 November 2017 I ordered the parties to confer on 19 February 2018 with a view to resolving the differences between the parties. The case was not settled.
For the purposes of the application in a case before me today, the respondent contended that –
a)pursuant to s.17A(2) of the Federal Circuit Court of Australia Act, or r.13.10 of the Federal Circuit Court Rules the applicant’s application filed 9 August 2017 be dismissed; or
b)pursuant to rr.13.10 or 16.21 of the Federal Circuit Court Rules the whole of the applicant’s amended statement of claim filed on 20 October 2017 be struck out.
The applicant’s claim invoked the fair work jurisdiction of this court. Pursuant to her amended statement of claim, the applicant alleged that –
a)she was employed by the respondent between 31 March 2008 and 12 May 2014 where she was in continuous service;
b)one Atar Schwartz was at all relevant times the general manager of the respondent;
c)one Harish Shama was at all relevant times the supervisor of the respondent responsible for supervising the work of the applicant; and
d)the respondent was responsible in law for the acts of Atar Schwartz and Harish Shama.
The relevant events leading to this litigation may be synthesised in the manner set out below drawn from the information under the heading entitled “material facts” in the amended statement of claim. In it Ms Kassim alleged –
a)the applicant was employed on a fulltime basis as a production assistant;
b)in August 2012 Ms Kassim fell pregnant;
c)in early 2013 Ms Kassim made a written request for 12 months unpaid parental leave commencing upon the date of birth of her child;
d)the written request for unpaid parental leave was duly signed by the respondent;
e)Ms Kassim continued to work until 3 April 2013 and on 26 April 2013 gave birth to her daughter;
f)in response to Ms Kassim’s request to return to work, Mr Shama agreed that she could, in May 2014, and
g)on 12 May 2014, upon Ms Kassim’s return to work that day, Mr Schwartz told her that there was no available work for her and he did not permit her to return to the respondent’s employment anytime thereafter.
On those facts as alleged the applicant advanced four legal propositions.
First, she said that for a 12 month period from about 3 April 2013 the applicant was taking unpaid parental leave as a result of which on 12 May 2014 the applicant was entitled to return to her job and that, by reason of Mr Schwartz telling her on 12 May 2014 that there was no work for her the respondent contravened s.44 of the Fair Work Act (“the Act”) entitling Ms Kassim to damages.
As the second legal proposition, Ms Kassim contended that the events of 12 May 2014 were in the nature of a termination of the applicant’s employment requiring the respondent to give her notice or payment in lieu and that by reason of the respondent’s failure to do either it contravened s.117 of the Act, thereby entitling Ms Kassim to damages.
As the third legal proposition, Ms Kassim contended that the telephone conversation between Ms Kassim and Mr Shama on a date between December 2013 and March 2014 during which Mr Shama agreed that Ms Kassim could return to work in May 2014 represented a variation to the applicant’s employment contract which the respondent breached entitling Ms Kassim to damages.
As the fourth legal proposition, Ms Kassim contended that –
a)the conversation between Ms Kassim and Mr Shama during which he said she could return to work in May 2014 was a representation on which the respondent intended Ms Kassim to rely;
b)she did in fact rely on that representation to her detriment by refraining from exercising a statutory right to return to work in April 2014;
c)it would be unconscionable for the respondent to avoid remedying the detriment Ms Kassim suffered in consequence of which the respondent was estopped from denying the existence of her ongoing employment contract; and
d)the respondent must pay her equitable compensation.
In respect of all or any of those four legal propositions the applicant has not provided particulars of loss and damage so it is not possible to tell precisely how much in the way of damages equitable compensation or other financial loss is an issue in this case. The respondent has not filed a response to the allegations in the statement of claim preferring instead to agitate the legal validity of all or some of the four legal propositions for which she contended. Very helpfully, counsel of the parties prepared detailed written submissions in which their more important contentions in favour of and in opposition to the application today were advanced.
Synopsis
For the reasons that follow I am not prepared to summarily dismiss this claim. In my view the strike-out application failed. It cannot be said at this interlocutory juncture in this litigation that Ms Kassim’s proceeding has no reasonable prospects of success nor is it necessary to conclude that the case is hopeless or bound to fail as those concepts were canvased in such authorities as Spencer v Commonwealth of Australia[1] or AMF15 v Minister for Immigration and Border Protection.[2]
[1] (2010) 241 CLR 118
[2] (2016) 241 FCR 30
In Aponso v Sea Corp Pty Ltd[3] I examined the key authorities on point, as did his Honour Judge Kelly very usefully draw the threads together in BJN16 v Minister for Immigration and Border Protection (No 2).[4]
[3] [2018] FCCA 339
[4] (2017) 321 FLR 469
A short examination of the case
In his written submissions, counsel for the respondent asserted that the matters recorded in paragraphs 4.1 to 4.5 of his submissions will be “hotly contested” if this case proceeds to trial. While it struck me that such wording may have been something of an overstatement it seemed to me that a large number of facts in those paragraphs are likely to be uncontroversial or they are to be sufficiently common to both sides, that I would expect them to be agreed facts at trial. For example –
a)the fact that Ms Kassim worked for the respondent, pursuant to a valid contract of employment between 30 March 2008 and April 2013;
b)that Ms Kassim approached a person who occupied a decision making role – not the receptionist to the respondent – in or about early 2013 requesting 12 months unpaid parental leave; and
c)following the birth of her child, the applicant presented for work in May 2014 but the applicant had not resumed active employment with the respondent since April 2013.
According to Mr Solomon-Bridge, the debate between the parties was whether any discussions took place in connection with Ms Kassim submitting a written request for unpaid parental leave and the proper legal characterisation of her departure from the respondent in April 2013. It must be said at the outset that the respondent has not ventured into the factual arena of this case preferring instead to launch the strikeout application or its contentions about summary dismissal. To that end Mr Solomon-Bridge wanted me to proceed on the basis of an acceptance of the facts asserted in the applicant’s statement of claim (in the nature of a demurrer) and that I was to assume those facts as facts found, whether the legal consequence of those facts (assumed proven facts) supported the relief claimed by the applicant. Beyond his saying that the matters between paragraphs 8 to 15 of the amended statement of claim were hotly contested none of them has so far yet been hotly contested in any pleading filed by the respondent.
For the purposes of this debate I am willing to proceed on the basis that the respondent will put in issue and that the respondent will therefore hotly contest a number of issues at a factual level. Undoubtedly others will emerge. However, it is likely that the respondent will put in issue –
a)the events surrounding her completion of a written request for unpaid parental leave;
b)her discussions with all relevant employees of the respondent about whether and if so by whom that form was to be signed and if not signed why the need for its execution was not required;
c)the contractual significance of those discussions;
d)the applicant’s legal status within the respondent having regard to those discussion;
e)if the respondent’s contentions are correct – namely, that the applicant had not worked for the respondent since April 2013 – what acts, facts, matters, circumstance or things brought about the cessation of her work at or around that time; and
f)the legal characterisation of the events by which her employment ceased, if that be the fact.
It struck me that there are likely to be disputed facts in this case that call for factual determination. Thereafter, the proper legal characterisation of those factual findings fall for determination.
In paragraph 9 of his submissions Mr Solomon-Bridge contended that the essential position (his words) of the respondent was threefold.
First, he said there was no breach of the Act as the applicant failed to give written notice of the taking of unpaid parental leave or of her request for an extension of unpaid parental leave beyond the first 12 months. Self-evidently a large factual dispute exists about those very matters. In Mr Solomon-Bridge’s submission those facts are hotly contested and disputed. It follows that those facts must be tried. When findings are made on them then the legal consequence of those factual findings must be applied.
One such factual finding might be (and I do not say anything beyond might be) that the applicant prepared a written request for leave but was assured by the respondent that such written request was not required. That analysis is more akin to the factual complexion placed on the events by the applicant. Conversely, it might transpire that the applicant simply failed to provide a written request through no representation made by the respondent with the consequence that the respondent may well be correct in its construction of the operation of ss.74 and 76 of the Act. But at this juncture I am unable to determine the matter.
Then, in paragraph 9.2 of his submissions counsel for the respondent contended that no breach of contract arose. He so submitted because –
a)he said unpaid parental leave is a matter of statutory entitlement;
b)no consideration was pleaded or apparent in respect to the alleged variation of the employment contract; and
c)in any event, this court has no accrued jurisdiction to determine that claim.
In an interlocutory dispute such as this on which submissions about there being no breach of contract are agitated based on conflicting facts I am not willing to dismiss a case as being unarguable or one in respect of which an applicant has dubious prospects of success. As to this court having no accrued jurisdiction, my intuitive response is to reject that contention in the way the High Court held the Federal Court of Australia has accrued jurisdiction in Stack v Coast Securities (No 9) Pty Ltd; Bargal Pty Ltd v Force[5] and in Fencott & Ors v Muller & Anor.[6]
[5] (1983) 154 CLR 261
[6] (1983) 152 CLR 570
Today, Mr Solomon-Bridge took me to the specific observations in Fencott v Muller that fortify my position in that regard. Such an important point as that requires detailed consideration.
Like observations apply in relation to the estoppel claim. Counsel for the respondents submitted in effect that the point was purely and simply not maintainable. I do not agree. The decision of French J in Metropolitan Health Service Board v Australian Nursing Federation[7] did not travel as far as to hold that it was impossible to set up an estoppel claim in an industrial context. Mr Solomon-Bridge’s argument did not suggest that at a doctrinal level it was not legally permissible to entertain an estoppel argument in an industrial context. But even if he had I would be most reluctant to summarily dismiss this proceeding at that point of this litigation having regard to the very limited life that this case has travelled and the considerable complexity of such an argument.
[7] (2000) 99 FCR 95
It seemed to me that it was ambitious for the respondent to have brought the summary dismissal application that it did. To my mind cases in which contested factual issues are raised as in this case along with legal propositions that include one where the jurisdiction of this court is raised should not be ventilated on the run.
I dismiss the application in a case.
I direct the parties bring in consent minutes for the ongoing future conduct of this case and I direct that this case be intensely case managed such that it is brought back before me for consideration of the next effective step to meaningfully advance this case within two weeks.
I will reserve both parties’ costs of today.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Associate:
Date: 28 March 2018
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